The norm that regulates remuneration for overtime work for the officials with special service ranks is incompatible with the equality principle included in the Satversme
On 2 May 2019, the Constitutional Court passed the judgement in case No. 2018-14-01 “On Compliance of Para 1 of Section 14 (71) of the law “Remuneration of Officials of State and Local Government Authorities” with the First Sentence of Article 91 of the Satversme of the Republic of Latvia”.
The Contested Norm
Para 1 of Section 14 (71) of the law “Remuneration of Officials of State and Local Government Authorities:
“If the officials with special service ranks of the institutions of the system of the Ministry of the Interior and of the Prison Administration are compensated for performing the services of duties over the time set for performing the services of duty by granting rest time in accordance with the seventh part of this Section and it jeopardises the ability of the respective institution of the system of the Ministry of the Interior or the Prison Administration to ensure that duties of service are performed, the head of the institution or an official authorised by him may decide on payment for the respective time when the duties of service were performed. In such a case, the payment for performance of the duties of service over the time for performing duties of service, which cannot be compensated for by granting rest time, shall be determined as follows (taking into account the number of overtime hours):
1) for the performance of service duties over the determined time for performance of service duties — at the time, when it was impossible to grant rest time to the official — in accordance with the hourly salary rate set for the official.”
The Norm of Higher Legal Force
The first sentence of Article 91 of the Satversme: “All human beings in Latvia shall be equal before the law and the courts.”
The Facts
The case was initiated on the basis of an application by the Administrative District Court. The Administrative District Court has a pending case, in the framework of which a the Prison Administration’s official with a special service rank requests imposing an obligation on the Prison Administration to compensate for the losses caused by the undisbursed additional payment for overtime work when the official had been prohibited from leaving, during the lunch break, the place where he performed his service duties.
The Administrative District Court holds that the contested norm is incompatible with the first sentence of Article 91 of the Satversme because, in general, regulatory enactments provide that the additional payment for overtime work is in the amount of 100 per cent of the salary determined for the person. Whereas, pursuant to the contested norm, the overtime work, which particular officials perform at the time, when it was impossible to grant rest time to them, must be paid for as for the regular working time, i.e., without this additional payment.
The Administrative District Court holds that this differential treatment lacks a legitimate aim. Even if the protection of public security could be considered as being the legitimate aim, this differential treatment is not appropriate for reaching this aim since its sole effect, allegedly, is saving the state budget resources.
The Court’s Findings
The Constitutional Court noted that the legislator’s obligation to ensure such remuneration to an employee for overtime work that is higher than the remuneration for work set for him followed from Para 2 Article 4 of the Revised European Social Charter. Moreover, in accordance with the principle of equality, the legislator must ensure that those employees, who are in similar and in accordance with certain criteria comparable circumstances, would receive equal remuneration for the overtime work. [14.2.]
On the groups of persons, who are in similar and comparable circumstances
The Constitutional Court noted that the nature of the official duties and the regulation on organising the working hours that followed from it as well as the restrictions linked to the position allowed concluding that the officials with the special service ranks were not in circumstances that would be comparable to those of other officials and employees of the state institutions or the private sector. [15.]
The contested norm is applicable only to those officials with the special service ranks, who have worked overtime at a time when it had been possible to give them a break. However, to those officials with special service ranks, who have worked overtime at any other time, a norm that envisages granting the double amount of remuneration for the respective overtime work is applicable. [15.1.]
In accordance with the principle of equality, also the same person, coming into actual situations that are similar and comparable according to certain criteria, should be subject to the same treatment. If, from the legal point of view, two actual situations are to be considered similar and comparable according to certain criteria then the legislator, in accordance with the principle of equality, should establish similar legal regulation with respect to both situations. [15.1.]
The Constitutional Court found that during the break an official with a special service rank was employed outside the regular time for performing the duties of office set in the law. [15.1.]
In accordance with the judicature of the Court of Justice of the European Union, “working time” and “resting time” are mutually exclusive concepts and an intermediate category between them is impossible. The decisive factor for classifying the working time is exactly the obligation of the employed person to be at the place determined by the employer, so that, if necessary, he could perform his professional duties immediately. Since in such a case the employee cannot freely choose his location then any time period like this must be considered as being working time. The classification of such working time cannot be influenced by the intensity, productivity and the amount of work performed during the respective time period, or the fact that the employer has ensured to the employee the possibility to use a resting room at the time when his services are not required. Hence, “the active time on duty”, when the employee stays at the location indicated by the employer, is to be considered as being overtime work. [15.2.]
Thus, the Constitutional Court found that the officials with special service ranks, who perform overtime work during a break, and the officials with special service ranks, who perform overtime work at other time, are in similar and according to certain criteria comparable circumstances. [15.2.]
On the differential treatment established in the contested norm
Pursuant to the contested norm, the officials with the special service ranks, who perform overtime work at the time when it was impossible to give them a break, receive remuneration for the overtime work in accordance with the hourly rate of remuneration set for them. Whereas the officials with the special service ranks, who perform overtime work at other time, receive double amount of remuneration for the overtime work. Hence, the contested norm establishes differential treatment of persons, who are in similar and according to certain criteria comparable circumstances. [16.]
On whether the differential treatment had been established by law
The Constitutional Court found that the regulation included in the contested norm pertained to state budget expenditure of 2017 and that the legislator had the right to include it in the package of laws accompanying the state budget law. The contested norm was adopted in the procedure established in the Satversme and the Rules of Procedure of the Saeima, it was promulgated and is publicly accessible in accordance with the requirements set in regulatory enactments, and it has been worded with sufficient clarity allowing a person to understand the content of the rights and obligations following from it and to foresee the consequences of application thereof. Hence, the Constitutional Court found that the differential treatment had been established by law. [17.]
On the legitimate aim of the differential treatment
The Constitutional Court found that, by establishing such remuneration for the overtime work performed by the officials with the special service ranks during a break that is equal to the regular hourly rate of remunerations set for them instead of the double amount of remuneration for overtime work that they are entitled to for the overtime work performed at other time, savings of the state budget resources are ensured. [18.]
The Constitutional Court noted that the need to save the state budget resources could justify the State’s refusal to grant resources for the performance of its less important functions or for introducing general austerity measures in conditions of economic recession. However, saving the state budget resources cannot serve as a legitimate aim of the differential treatment of groups of persons, who are in similar and according to certain criteria comparable circumstances. In the particular case, no legitimate aim can be discerned for setting for the same group of officials for the overtime work performed at certain time lower remuneration than the overtime work performed at other time. Hence, the Constitutional Court found that the contested norm was incompatible with the first sentence of Article 91 of the Satversme. [18.]
On the retroactive force of the judgement
The Constitutional Court recognised that the administrative courts had a number of cases pending, in the adjudication of which it could be required to apply the contested norm; moreover, it is possible that the contested norm had been applied or is applicable also in other administrative cases. [19.]
Therefore the Constitutional Court recognised the contested norm as being void as of the moment when a person’s fundamental rights were infringed upon with respect to all persons, who, to defend their rights, had turned to a court in the procedure established in the Administrative Procedure Law and with respect to which the administrative proceedings in the court had not been completed yet, as well as to such persons, who, to defend their rights had turned to the court in the procedure established in the Administrative Procedure Law and with respect to which the administrative proceedings already had been completed. [19.]
Additionally, the Constitutional Court noted: to protect persons’ fundamental rights, institutions of public administration and courts in situations, where the contested norm should be applied, must ensure a solution that complies with the principle of legal equality by using appropriate legal methods and taking into account the findings included in this judgement. [19.]
The Constitutional Court held:
To recognise Para 1 of Section 14 (71) of the law “Remuneration of Officials of State and Local Government Authorities” as being incompatible with the first sentence of Article 91 of the Satversme of the Republic of Latvia.
To recognise Para 1 of Section 14 (71) of the law “Remuneration of Officials of State and Local Government Authorities” as void as of the moment when a person’s fundamental rights were infringed upon with respect to all persons, who, to defend their rights, have turned to a court in the procedure established in the Administrative Procedure Law and with respect to which the administrative proceedings in the court have not been completed yet, as well as to such persons, who, to defend their rights have turned to the court in the procedure established in the Administrative Procedure Law and with respect to which the administrative proceedings already have been completed.
The judgement of the Constitutional Court is final and not subject to appeal, it will enter into force on the day it is published. The judgement will be published in the official journal “Latvijas Vēstnesis” within the term set in Section 33 (1) of the Constitutional Court Law.
The text of the judgement [in Latvian] is available on the homepage of the Constitutional Court: https://www.satv.tiesa.gov.lv/wp-content/uploads/2018/07/2018-14-01_Spriedums-2.pdf
Linked case: 2018-14-01